[ v54 p338 ]
The decision of the Authority follows:
54 FLRA No. 41 FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C. _____ U.S. DEPARTMENT OF THE NAVY NAVY PUBLIC WORKS CENTER NORFOLK, VIRGINIA (AGENCY) and TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL (UNION) 0-AR-2906 _____ DECISION June 12, 1998 _____ Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. I. Statement of the Case This matter is before the Authority on exceptions to an award of Arbitrator Edward L. Merrigan filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions. The Arbitrator granted environmental differential pay (EDP), based on hazardous weather conditions, to employees working or traveling to and from work on a particular date. For the following reasons, we set aside the portions of the award that grant EDP: (1) for time employees spent traveling to and from work; and (2) to employees who worked indoors on that date. As we are unable to determine whether the portion of the award granting EDP to employees who worked outside on the date in question is deficient, we remand it to the parties for resubmission, absent settlement, to the Arbitrator for clarification. II. Background and Arbitrator's Award A weekend storm blanketed the Hampton Roads, Virginia area with snow, resulting in severe weather that continued into Monday, February 5, 1996. The storm caused schools and most businesses in the Hampton Roads area to close on February 5. The Commanding Officer of the Navy Public Works Center (Agency) ordered all employees, both essential (ALFA) and nonessential (BRAVO), to report to work on time on Monday, February 5. Most of the Agency's employees reported for work. However, 260 employees were late, and 5 employees were injured as a result of ice and snow conditions. The Union filed a grievance claiming, as relevant here, that the Agency violated applicable regulations and past practice by requiring BRAVO employees to work and report on time in "unsafe extreme weather conditions" on February 5. The Union requested that all BRAVO employees who reported to work on that date receive "[h]igh work" environmental differential pay at the 25 percent rate as authorized by 5 C.F.R. 532.511, Appendix A, Part I.2. When the grievance was not resolved, it was submitted to arbitration. The parties did not stipulate the issues to be resolved by the Arbitrator. The Arbitrator found that Agency employees "who worked, or traveled to and from work" on February 5 "were patently exposed to dangerous conditions of terrain, temperature and wind velocity." Id. at 20-21. Based on this finding, the Arbitrator granted employees who "traveled to and from their work places and actually reported [to] work, either on time or late," on that date EDP at the rate of 25 percent, as specified in OPM's EDP Category 9. Id. at 24. In this regard, the Arbitrator rejected the Union's reliance on EDP Category 2, High Work, as the category under which EDP was authorized for the grievants, determining instead that the appropriate category was Category 9. The Arbitrator stated that the amount of EDP was to be computed as prescribed in applicable regulations. III. Positions of the Parties A. Agency The Agency claims that the award of Category 9 EDP, "Exposure to hazardous weather or terrain," is deficient because the Union requested the payment of EDP based on Category 2, "High [W]ork." The Agency argues that the Arbitrator "prejudiced" the Agency because it was not provided with the opportunity to present evidence that dealt with Category 9. Exceptions at 3. The Agency also contends that the award is contrary to law, asserting that "employees cannot be paid [EDP] for traveling to and from work[.]" Id., (citing U.S. Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366 (1986) and U.S. Department of Labor, Mine Safety and Health Administration and National Council of Field Labor Locals, American Federation of Government Employees, 32 FLRA 930 (1988). In addition, the Agency claims that, even if employees are entitled to EDP, they are only entitled to payment for actual time exposed to the hazardous condition pursuant to 5 C.F.R. 532.511(b)(2). According to the Agency, since "[m]ost BRAVO category employees who came to work on 5 February 1996 worked indoors[,]" they were not exposed to hazardous conditions and, thus, are not entitled to EDP. Id. at 5. B. Union The Union did not file an opposition. IV. Analysis and Conclusions A. The Arbitrator did not exceed his authority by awarding a different category of environmental differential pay than was requested by the Union. We construe the Agency's claim that the Arbitrator could only determine the issue of whether to award EDP from Category 2, and not from Category 9, as a contention that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). It is well-established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995). In this case, the parties did not stipulate the issue. Accordingly, the Arbitrator was free to formulate one. See, e.g., U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996). Although the Arbitrator did not expressly set forth the issue, it is clear from the award as a whole that he determined the issue to be whether, and under which category, EDP should be granted to employees who worked, or traveled to and from work, on February 5, 6, and 7, 1996. The Arbitrator resolved this issue by determining that employees were entitled to EDP under Category 9, rather than Category 2. In these circumstances, the Agency has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we deny this exception. B. Whether the Arbitrator's award is contrary to law, rule, or regulation. We review questions of law raised by a party's exceptions to an arbitrator's award de novo. U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 53 FLRA 984, 992 (1997), citing, National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). See also U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). 1. The portion of the Arbitrator's award granting EDP for employees commuting to and from work during winter storm conditions is contrary to 5 C.F.R. 532.511 5 C.F.R. 532.511, Appendix A, Part I, Category 9 provides for the payment of EDP for "[e]xposure to dangerous conditions of terrain, temperature and/or wind velocity, while working or traveling . . . ." (Emphasis added). The term "travel" as used in Category 9 is not defined in the EDP regulations. However, home-to-work "travel," or commuting is typically considered separate and distinct from "travel" on official Government business. See, e.g., American Federation of Government Employees, Local 3006 and U.S. Department of Defense, National Guard Bureau, State of Idaho, Office of the Adjutant General, 47 FLRA 155, 159-160 (1993) ("normal home-to-work commuting is not travel on official business of the Government"). Further, the statutory basis for the payment of EDP does not contain an unequivocal expression that compensation for home-to- work travel is authorized. See 5 U.S.C. 5343(c)(4). Absent an unequivocal and unambiguous expression of a waiver of sovereign immunity, the payment of Federal money, including any pay differential, is not authorized. See United States v. Testan, 424 U.S. 392, 402 (1976) and Lane v. Pena, 518 U.S. 187 (1996) (June 20, 1996), quoting Irwin v. Veterans Affairs, 498 U.S. 89, 95 (1990). In these circumstances, and in the absence of any argument or authority to the contrary, we conclude that the EDP regulations do not authorize compensation for the type of traveling for which the Arbitrator ordered EDP. Therefore, this portion of the award is deficient as contrary to law, and we set it aside. 2. The record is insufficient for a determination as to whether the portion of the award granting EDP to employees engaged in the performance of work is deficient under 5 C.F.R. Part 532. 5 C.F.R. 532.511(a)(1) provides that an employee is entitled to EDP "when exposed to a working condition or hazard that falls within one of the categories approved by the Office of Personnel Management." As relevant here, employees are entitled to EDP when they are exposed to: "dangerous conditions of terrain, temperature and/or wind velocity, while working . . . when such exposure introduces risk of significant injury or death to employees . . . ." 5 C.F.R. 532.511, Appendix A, Part I.9. The Arbitrator determined that "employees who worked, or travelled to and from work, on Monday, February 5, 1996 were patently exposed to dangerous conditions of terrain, temperature and wind velocity." Award at 20. These are factual findings to which the Authority defers. See Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956, 959 (1997) and American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996). It appears from the record that the bargaining unit encompasses employees working indoors and employees working outdoors. In this regard, the Agency in its exceptions states that "[m]ost . . . employees . . . worked indoors[,]" thereby conceding that at least some employees worked outdoors. Exceptions at 5. With respect to employees who worked indoors on February 5, we agree with the Agency that they are not entitled to EDP under Category 9 because they were not exposed to hazardous weather or terrain while they were working. Thus, the award as to these employees is deficient as contrary to law. With respect to employees who worked outdoors on February 5, the Arbitrator made no factual findings concerning their entitlement to EDP. In particular, the Arbitrator did not distinguish between weather conditions relevant to traveling to the Agency and the conditions relevant to the performance of work outside at the Agency. In addition, the award contains no findings concerning either the job functions of these employees or the length of time they were exposed to dangerous weather conditions. Indeed, the award does not even refer to any employees working outdoors on February 5. Without findings on these matters, the Authority is unable to determine whether the award is deficient with respect to the employees working outdoors on February 5. In situations such as this, where the Authority is unable to determine whether an arbitrator's award is deficient, the practice of the Authority is to remand the case to the parties for resubmission to the arbitrator, absent settlement, for a clarification of the award. See, e.g., U.S. Department of the Air Force, 509th Bombardment Wing, Pease Air Force Base, New Hampshire and National Association of Government Employees, Local R1-111, 41 FLRA 1035, 1041 (1991). A remand is appropriate in these circumstances to permit impartial resolution of the remaining factual issues in this case. Of course, the parties are free to resolve the matter without further arbitration proceedings. However, absent settlement, the parties are directed to submit the matter to the Arbitrator for clarification as to whether employees who worked outdoors on February 5, 1996 are entitled to EDP and, if they are, why. V. Decision The award of EDP to employees for time spent traveling to and from work on February 5, 1996, and to employees who worked inside on that date is set aside. The award of EDP to employees who worked outside on that date is remanded to the parties for resubmission, absent settlement, to the Arbitrator for a clarification. Opinion of Member Wasserman, Concurring in Part and Dissenting in Part I agree with my colleagues regarding three of their conclusions: that the Arbitrator did not exceed his authority by awarding a different category of EDP from that which was originally requested; that he erred in awarding EDP to employees who merely commuted to and from work; and that he erred in awarding EDP to employees who worked indoors. However, I disagree with their determination that the Arbitrator failed to establish that the outdoor employees were entitled to EDP and dissent as to that portion of the decision. Testimony regarding the Agency's efforts to improve the conditions at its PWC facility revealed that on Sunday, February 4, the Agency "had a hard time keeping ahead of the snow drifts on the runways[,]" because of the cold and the high winds. Award at 9. The Agency's Commanding Officer also stated that the Agency "worked hard" on Sunday "to keep the road intersections on the bases open and the roads open." Id. According to the record, the Agency's Disaster Preparedness Officer spoke with the Agency transportation personnel, who were removing the snow and sanding and salting the roads at the Agency, regarding the outlook of road conditions at the Agency for Monday morning. The Officer testified that the crews responded, "it is tough. . . [there] is a lot of ice there. We are not dealing with snow. We are dealing with ice, and we don't know if we can melt it in time . . . I didn't think we were going to be ready in time." Id. at 11. It is clear from the record that these dangerous conditions still existed on Monday, February 5, 1996. The evidence showed that the temperature in the Hampton Roads area, where the Agency was located, ranged from 10øF to 29øF on February 5. Id. at 9, citing, Agency Ex. 2. The record also indicated that wind continued to blow from the northwest at 12 to 18 kts. Based on this evidence, the Arbitrator concluded that on February 5, Hampton Roads was still in a "deep freeze." Appendix A's windchill chart describes when persons are in danger from the combination of wind speed and local temperature. 5 C.F.R. Part 532, Appendix A, Exhibit 1. According to this chart, when local temperature ranges from 14øF up to 23øF, with a wind speed ranging from 10 - 20 kts., a person exposed to these elements is in "considerable danger" from freezing of exposed flesh because of the windchill between -4øF to -19øF. Thus, the local temperature and wind velocity on February 5 put the grievants in "considerable danger" at least for some portions of the day according to the windchill chart in Appendix A. The record also showed that the roads surrounding the Agency were so hazardous and icy on Monday, February 5, that the police and local media were directing drivers to stay off the streets. In this connection, the Arbitrator noted that the Norfolk Naval Base, which includes most of the Navy's major activities in the Hampton Roads area, excused all of its nonessential employees due to the weather conditions on February 5. Award at 10. In evaluating the conditions that existed on Monday, February 5, the Arbitrator stated that: Those who did venture out of their homes to report for work as ordered by [the Agency] were confronted with frozen bridges; icy and slippery roads; impassible snow accumulations in many areas, and "snowed in" parking lots at the Agency facility. Automobile accidents were thus commonplace, and even employees who successfully reached their Agency work places were subjected to serious injuries and/or damage to their vehicles. Id. at 20 (emphasis added). Based on these "established conditions," the Arbitrator determined that the Agency employees who worked on Monday, February 5, 1996, "were patently exposed to dangerous conditions of terrain, temperature and wind velocity." Id. The Arbitrator went on to conclude that "these exposures not only created 'the risk of significant injury' within the meaning of OPM Category 9, but they actually resulted in serious injuries and other employee losses." Id. In this case, I view the Arbitrator's findings as sufficient to support the determination that the Agency employees who worked outdoors on Monday, February 5 "were patently exposed to dangerous conditions of terrain, temperature and wind velocity." Id. These conditions created an actual and significant risk of serious injury to the employees within the meaning of 5 C.F.R. Part 532, Appendix A, Category 9. I have concluded, as the Arbitrator did, that the critical requirements under Category 9 for the outdoor employees' entitlement to EDP have been met. Category 9 only requires that employees be exposed to dangerous conditions "while working," which the Agency has conceded has happened here. See Exceptions at 5 (the Agency's statement that "[m]ost BRAVO category employees who came to work on 5 February 1996 worked indoors[,]" is tacit recognition that some BRAVO employees worked outdoors). The identification of the specific employees who worked outdoors on February 5 is a matter for the parties to determine during the implementation phase after the award. Similarly, the actual amount of EDP each individual employee should receive for exposure on Monday, February 5, should be left to the parties as a compliance matter pursuant to properly "applicable regulations." Award at 24. Consequently, I dissent.
(If blank, the decision does not have footnotes.)
1. Member Wasserman's partial dissent is set forth at the end of this decision.
2. The Agency's published instruction distinguishes between two categories of employees for the purpose of notification during a snow emergency. Award at 6-7. "Snow Emergency Category ALFA Personnel" are essential employees who are expected to work at their normal time or shift during snow emergency conditions. Id. at 7. "Snow Emergency Category BRAVO Personnel," defined as all Public Works Center employees not designated as ALFA Personnel, are expected to report as instructed by their supervisors or as modified by public announcements over commercial TV and radio. Id.
3. The Union also claimed, and the Arbitrator agreed, that the Agency should have granted administrative leave to certain employees. As the Agency has not excepted to this portion of the award, we do not address it further.
4. The regulations referenced in the Award provide, in pertinent part, as follows: 5 C.F.R. § 532.511, Appendix A, Part I.9: Part I - Payment for Actual Exposure. 25% 9. Exposure to hazardous weather or terrain. Exposure to dangerous conditions of terrain, temperature and/or wind velocity, while working or traveling when such exposure introduces risk of significant injury or death to employees . . . . 5 C.F.R. § 532.511(b): (b) Amount of environmental differential payable. (1) An employee entitled to an environmental differential shall be paid an amount equal to the percentage rate authorized by the Office of Personnel Management for the category in which the working condition or hazard falls . . . . (2) An employee entitled to an environmental differential on an actual exposure basis shall be paid a minimum of one hour's differential pay . . . . (3) An employee entitled to an environmental differential on the basis of hours in a pay status shall be paid for all hours in a pay status on the day on which he/she is exposed to the situation. . . .
5. We note that payment of Category 9 EDP is authorized for actual exposure rather than hours in a pay status. See 5 C.F.R. § 532.511, Appendix A. Therefore, on remand, the Arbitrator should apply 5 C.F.R. § 532.511(b)(2).
6. A "knot" (kts.) is equal to approximately 1.15 miles per hour. Converting the kts. to miles in this case indicates that the wind was blowing from the northwest at 13.8 to 20.7 miles per hour. In his award, the Arbitrator stated that the northwest winds "gust[ed] to 25 kts" on Monday, February 5, or 28.75 miles per hour. Award at 19.